Kerala High Court
Chandrika vs Abdul Samad on 15 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA,
1943
MACA NO. 2300 OF 2007
AGAINST THE COMMON AWARD IN OP(MV) 375/2000 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA
APPELLANT/3RD PETITIONER:
CHANDRIKA, W/O.RADHAKRISHNAN
PUTHENCHIRA PUNTHALA, PURAKKAD,
AMBALAPUZHA.
BY ADV SRI.A.C.DEVY
RESPONDENTS/RESPONDENTS:
1 ABDUL SAMAD, PADINJAREKARUKAYIL HOUSE
NEERKUNNAM, VANDANAM, ALAPPUZHA.
2 ORIENTAL INSURANCE CO.LTD. REP.
BY DIVISIONAL MANAGER, DIVISIONAL OFFICE,
THIRUVALLA.
BY ADV SRI.M.JACOB MURICKAN FOR R2
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME
UP FOR ADMISSION ON 15.07.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.2300 of 2007
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JUDGMENT
The appellant was the petitioner in OP(MV)No.375 of 2000
on the file of the Motor Accidents Claims Tribunal, Alappuzha.
The respondents in the appeal were the respondents before the
Tribunal.
2. The facts in brief, relevant for the determination of
appeal, are : On 29.08.1995, while the appellant was travelling in
an autorickshaw bearing registration No.KL-3/4967 on the NH-
47, when the vehicle reached the Navarackal temple, a mini lorry
bearing registration No.KL-7/G-6462 (offending vehicle) driven
by the first respondent, hit the autorickshaw. The appellant was
thrown off the vehicle and sustained serious injuries, including
fractures. The fellow passengers and driver in the vehicle also
sustained injuries. The appellant's mother succumbed to the
injuries after an hour. The appellant was treated at the Medical
College Hospital, Alappuzha. The accident occurred solely on
account of negligence on the part of the first respondent, who
was also the owner of the offending vehicle. The offending
M.A.C.A.No.2300 of 2007
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vehicle was insured with the second respondent. The appellant
was a tailor by profession and earning a monthly income of
Rs.1,500/-. The appellant claimed a compensation of
Rs.1,62,750/-. The fellow passengers and the legal
representatives of the appellant's mother filed O.P.(MV)No.374,
376 and 377 of 2000 before the same Tribunal seeking
compensation.
3. The first respondent did not contest the proceedings
and was set ex parte. The second respondent contested all the
claim petitions. They filed a written statement, inter alia,
admitting that the offending vehicle had a valid insurance policy,
but it was issued in the name of one V.S.M.Ashraf. Therefore,
there was no brevity of contract between the second respondent
and the first respondent. It was also contended that the accident
did not occur on account of the negligence of the first
respondent. Therefore, the claim petition may be dismissed.
4. The Tribunal consolidatedly and jointly tried all the
original petitions.
5. PWs.1 to 4 were examined on behalf of the appellant
M.A.C.A.No.2300 of 2007
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and other petitioners and Exts.A1 to A18 were marked in
evidence.
6. The Tribunal by a common award allowed the claim
petition filed by the appellant by permitting her to realise an
amount of Rs.42,000/- with interest @ 6% per annum from the
date of petition till the date of realisation and a cost of Rs.500/-.
7. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal.
8. Heard the learned counsel for the appellant and the
learned counsel appearing for the second respondent/insurance
company.
9. The question that arises for consideration in this
appeal is whether the quantum of compensation awarded by the
Tribunal is reasonable and just.
10. Ext.A4 charge sheet filed by the police after
investigation clearly substantiates that the accident occurred on
account of negligence of the first respondent. Indisputably, the
offending vehicle was covered by a valid insurance policy.
Therefore, it is the second respondent who is liable to indemnify
M.A.C.A.No.2300 of 2007
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the liability of the first respondent, caused on account of the
accident by use of the offending vehicle.
11. The appellant had claimed that she was tailor by
profession and earning a monthly income of Rs.1,500/-. However,
on a perusal of the impugned award, the notional income is not
seen fixed by the Tribunal.
12. Considering the fact that the appellant was a tailor by
profession and the accident occurred in the year 1999 and
following the ratio in Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited [(2011) 13
SCC 236], I fix the notional income of the appellant, as claimed
in the claim petition, at Rs.1,500/- per month.
Loss of earnings
13. Ext.A13 wound certificate and Ext.A14 discharge
cards prove that the appellant was treated as in-patient for the
period between 29.08.1999 and 08.09.1999. She sustained three
fractures as evident from Ext.A13 wound certificate. She had to
wear a plaster cast, which was removed only on 07.10.1999. She
subsequently again underwent treatment from 18.11.2002 to
M.A.C.A.No.2300 of 2007
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25.11.2002. Therefore, she had to undergo treatment for a period
of 20 days' spanning in two spells for nearly two years.
14. In such circumstances, I am of the opinion that the
appellant was incapacitated for a period of seven months as
claimed in the claim petition. Therefore, after fixing the notional
income of the appellant at Rs.1,500/- and the period of incapacity
at 7 months, I re-fix her loss of earnings at Rs.10,500/- instead of
Rs.7,500/- fixed by the Tribunal.
Bystander expenses
15. Going by Ext.A13 wound certificate, Ext.A14 series of
discharge cards and Ext.A15 disability certificate, the appellant
was treated as an in-patient for a period of 20 days. Although she
had sought for bystander expenses of Rs.2,500/-, the Tribunal did
not award any amount. Considering the period of hospitalisation
of 20 days, I hold that the appellant is entitled for bystander
expenses of Rs.2,500/-, as claimed in the claim petition.
Loss of amenities
16. The Tribunal though did not accept Ext.A15 disability
certificate, wherein the doctor has certified that the appellant
M.A.C.A.No.2300 of 2007
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has permanent disability of 22.8%, went on to award an amount
of Rs.20,000/- towards 'loss due to disability'.
17. In view of the non-examination of the doctor and the
findings of the Tribunal, I do not find any error in the fixation of
compensation under the said head. However, even though the
appellant had claimed an amount of Rs.20,000/- towards 'loss of
amenities', the Tribunal did not award any amount under the said
head.
18. Taking into account the serious injuries sustained by
the appellant, particularly the three fractures, and that she was
hospitalised for a period of 20 days and had to undergo treatment
nearly two years, I am of the firm opinion that the appellant is
entitled for compensation for loss of amenities as claimed for in
the claim petition, at Rs.20,000/-.
19. With respect to other heads of compensation, I find
that the Tribunal has awarded reasonable and just compensation.
20. On an overall re-appreciation of the pleadings,
materials on record and the law laid down in the afore-cited
decision, I hold that the appellant is entitled for enhancement of
M.A.C.A.No.2300 of 2007
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compensation as modified and re-calculated above, i.e., an
enhancement by a further amount of Rs.25,500/-, namely,
Rs.2,500/- towards 'bystander expenses', Rs.3,000/- towards 'loss
of earnings' and Rs.20,000/- towards 'loss of amenities'.
In the result, the appeal is allowed in part by enhancing the
compensation by a further amount of Rs.25,500/- with interest @
6% p.a. from the date of petition till the date of deposit after
deducting 1,004 days, i.e., the period of delay in preferring the
appeal and as ordered by this Court on 30.09.2019 in
C.M.A.No.2426/2007 and costs. The second respondent shall
deposit the enhanced compensation along with interest and
costs before the Tribunal within a period of two months from the
date of receipt of certified copy of this judgment. The Tribunal
shall disburse the enhanced compensation amount to the
appellant/petitioner in accordance with law.
Sd/-
C.S.DIAS
JUDGE
ami/
